Immigration Bill 2015 – Illegal working

If enacted in its current form, the provisions in the Immigration Bill relating to illegal working will require ever more vigilance on the part of Sponsors and migrants to avoid falling foul of the new measures, including severe criminal sanctions.

The Bill proposes the creation of a new criminal offence of illegal working, which will affect migrants in circumstances where they are either working in the UK without permission, or continue to do so once their permission has ceased to have effect, or they are subject to a condition preventing them from undertaking the work they are doing. The offence will be punishable by imprisonment for up to 51 weeks, or by a fine, or both. A migrant convicted of the offence may also have their earnings seized.

The Bill also amends the existing offence of employing an illegal worker. Previously, an employer had to have known that the migrant did not have permission to be guilty of the offence. Under the new provisions of the Bill, the offence may now be committed by an employer who either knows or has reasonable cause to believe that a person is working without leave. The maximum penalty is also raised to five years’ imprisonment (currently two).

An immigration officer may also arrest, without a warrant, a person they have reasonable grounds for suspecting has either committed or is attempting to commit an immigration offence.

A further new provision will give powers to the Chief Immigration Officer to issue a notice to close business premises if they are reasonably satisfied that an illegal working offence is being committed. This is subject to the condition that the employer in question has either been convicted of the illegal working offence, or received a civil penalty within the past three years, or received a civil penalty at any time which has not yet been paid.

Currently the Bill is moving through all the parliamentary stages at a rapid pace and although amendments have been proposed, none have been successful. Further provisions which will restrict migrants’ access to services, including holding a bank account, driving and renting property, could lead to a dire outcome for some migrants, who may fall foul of these illegal working provisions, through no fault of their own, perhaps following an erroneous decision by the Home Office or due to the fact that the Home Office’s records are not up to date. Migrants with full working rights could find themselves dismissed from employment if the Home Office checking service records are not up to date or inaccurate, and consequently will be unable to rent, maintain a bank account or drive in the UK. As appeal rights will also be removed for all except asylum cases, migrants will not be able to remain in the UK to challenge erroneous decisions.

Immigration Bill – Immigration skills charge

The Immigration Bill also includes provision for the Home Office to levy an Immigration Skills Charge against employers of sponsored migrants. Although the Migration Advisory Committee (MAC) included this in its Tier 2 Review consultation in July this year, and the outcome of this consultation is still awaited, it seems inevitable that the government will introduce some form of skills charge in 2016. As to the level of the charge and which criteria will be set for any exemptions, watch this space!

The Department for Business Immigration and Skills has also consulted on a proposal to introduce an Apprenticeship Levy, to be applied to companies across the board from 2017. This consultation closed on 2 October 2015 and depending on the outcome of this, it would make sense for the government to consider the impact on businesses of any apprenticeship levy, before making a decision on the skills charge.

Right to rent checks

Right to rent checks affecting landlords in the private rented sector will also be rolled out across the whole of England with effect from February 2016. Click here for our blog.

Tier 2 changes

Following the conclusion of the Tier 2 Review consultation conducted by the MAC in the summer of 2015, the MAC’s recommendations are expected later in December. As well as the widely anticipated introduction of the skills charge, it seems likely that some changes to the Tier 2 Intra-Company Transfer route will be recommended. As the consultation devoted a large section to the IT sector, and third party outsourcing contracts in particular, and given the fact that the ICT short-term route is used widely by this sector, this route could well be subject to further restrictions and an increase in the minimum salary thresholds. Again, watch this space!

Roll out of criminal record checks

Criminal records checks have already been introduced for Tier 1 applications and it is widely anticipated that these will be further rolled out in 2016 to cover Tier 2 applicants, click here for the blog.